UNITED STATES v. ADLER

Defendants have moved to suppress all evidence seized pursuant to a warrant to search

"premises known as Unruh & Bustleton Avenue, or 2100 Unruh Avenue, Basement Floor and Middle Floor, with entrance facing Bustleton Avenue of a two story red brick building . . . [for] . . . records of financial indebtedness contracted in connection with and in addition to mortgages insured by the Federal Housing Administration; which are in violation of Title 18, United States Code, § 1010."
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The affidavit submitted by F.B.I. Agent Zagreb in support of the application for the search warrant consisted of the following:

"The affiant has a statement from a purchaser of a home through City Wide Realty, the mortgage for which home was insured by the Federal Housing Administration in which statement the purchaser stated that at settlement City Wide Realty as creditor accepted a note from the purchaser as debtor for $1,800; that payments were made by mail and in person to City Wide Realty at Unruh & Bustleton Avenue, Philadelphia, Pa., and that affiant has seen a rent book containing receipts for payments made from 3/1/69 to 2/5/1970; and a letter from City Wide Realty Company, dated April 21, 1971, asking for late payments of $324.75; and a statement from home owner that she saw records of financial indebtedness in the office of City Wide Realty Company, Unruh & Bustleton Avenue, Philadelphia, on 4/28/72."

The affidavit was sworn to on May 2, 1972, and the warrant issued and was executed on the same day. The search was conducted by a team of agents, two assigned to the basement floor and two to the middle floor under the direction and supervision of a group leader. The search lasted two hours and included all desk drawers and filing cabinets on both floors of the premises. The search uncovered evidence of "secondary" financing, which led to the filing of the 12 count indictment charging violations of § 1010 with respect to purchases of five different homes, mortgages for which were insured by the FHA.

It would be helpful to state briefly, at the outset, the principles governing the review of probable cause for issuance of warrants. Some are set forth in Spinelli v. United States, 393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), as follows:

". . . that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 18 L. Ed. 2d 62, 87 S. Ct. 1056 (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960)."

In addition, the affidavit must present evidence of sufficiently current events on which the magistrate can make a finding that probable cause exists at the time of the issuance of the warrant. Sgro v. United States, 287 U.S. 206, 77 L. Ed. 260, 53 S. Ct. 138 (1932); United States v. Johnson, 461 F.2d 285 ( 10th Cir. 1972); United States v. Guinn, 454 F.2d 29 (5th Cir.), cert. denied, 407 U.S. 911, 92 S. Ct. 2437, 32 L. Ed. 2d 685 (1972); United States v. Van Ert, 350 F. Supp. 1339 (E.D. Wisc. 1972). Further, if the evidence submitted includes information furnished by an informant

"the first step in the analysis is to determine whether the finding of probable cause is based on the informant's tip alone, the tip plus evidence corroborating the tip, or the tip and other incriminating evidence. If the tip alone or the tip plus corroboration of the tip are the sole grounds for the finding by the magistrate of probable cause, then Spinelli and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), demand that the tip or the tip plus corroboration meet certain standards." United States v. McNally, 473 F.2d 934, 937 (3d Cir. 1973).

As Judge Adams pointed out in McNally, Spinelli and Aguilar require that if the informant's tip is essential to the determination of probable cause, the additional allegations of the affidavit must set forth a factual basis for the informant's conclusion, and a factual basis for the affiant's reason to believe the informant.

Proceeding with the foregoing principles in mind, I will consider the several objections raised by the defendants to the ...

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